Replacement of the Unserved Portion of a Sentence with a More Lenient Type of Punishment or Reduction of the Imposed Sentence Term

I present to your attention an in-depth legal commentary on Article 73 of the Criminal Code of the Republic of Kazakhstan (hereinafter — the CC RK), “Replacement of the Unserved Portion of a Sentence with a More Lenient Type of Punishment or Reduction of the Imposed Sentence Term.”

🔹 1. Legal Nature and Significance of Article 73 of the CC RK

Article 73 of the CC RK grants convicted persons serving a sentence of imprisonment, under certain conditions, the possibility of replacing the remaining portion of the sentence with a more lenient type of punishment or reducing the term of the sentence. This mechanism is aimed at encouraging the rehabilitation of convicted persons and their successful resocialization.

🔹 2. Conditions for Applying Sentence Replacement

2.1. Categories of Crimes

Replacement of the unserved portion of a sentence is possible for persons convicted of:

· minor offenses;· offenses of medium gravity;· serious crimes.

For especially serious crimes, replacement is not предусмотрена, except in cases specified in Part 4 of Article 73 of the CC RK.

2.2. Minimum Term Served

The convicted person must have actually served:

· at least one quarter of the sentence for minor and medium-gravity offenses;· at least one third of the sentence for serious crimes.

2.3. Additional Conditions

· Full compensation for the damage caused by the crime, or absence of malicious violations of the established procedure for serving the sentence.

· Replacement does not apply to persons convicted of crimes against the sexual inviolability of minors (except where the crime was committed by a minor against a person aged 14 to 18), terrorist or extremist crimes resulting in death or associated with the commission of an especially serious crime, as well as crimes committed as part of a criminal group.

· For foreign citizens and stateless persons, replacement is possible only with a fine, with or without expulsion from the Republic of Kazakhstan.

🔹 3. Types of More Lenient Punishments

The court may replace the unserved portion of the sentence with:

· A fine: calculated at the rate of one monthly calculation index (MCI) for every four days of imprisonment. A prerequisite for replacement with a fine is full compensation for the damage caused by the crime.

· Restriction of liberty: calculated at the rate of one day of restriction of liberty for one day of imprisonment.

🔹 4. Reduction of the Sentence Term

The court may reduce the remaining unserved portion of the sentence by no more than half if the convicted person:

· assisted in the detection and investigation of crimes committed by a criminal group;· fulfilled all the terms of a procedural agreement.

Reduction of the sentence term does not apply to persons convicted of crimes against the sexual inviolability of minors, except where the crime was committed by a minor against a person aged 14 to 18.

🔹 5. Procedure for Considering the Petition

A petition for replacement of the unserved portion of the sentence is submitted by the convicted person to the court. The court considers the petition with the mandatory participation of the convicted person, his or her defense counsel, a representative of the institution or body executing the sentence, and the prosecutor. The victim or his or her representative has the right to participate in the court hearing.

The court evaluates the behavior of the convicted person, his or her attitude toward work and study, the presence of incentives and disciplinary sanctions, as well as other circumstances indicating the person’s rehabilitation.

🔹 6. Related Legislative Provisions

· Criminal Code of the Republic of Kazakhstan:o Article 40 — Types of Punishment.o Article 72 — Conditional Early Release from Serving a Sentence.o Article 87 — Replacement of the Unserved Portion of a Sentence for Juveniles.

· Criminal Executive Code of the Republic of Kazakhstan:o Article 162 — Procedure and Conditions for Submission for Conditional Early Release and Replacement of the Unserved Portion of a Sentence with a More Lenient Type of Punishment.

· Criminal Procedure Code of the Republic of Kazakhstan:o Article 480 — Procedure for Court Consideration of Issues Related to the Execution of a Judgment.

· Normative Resolution of the Supreme Court of the Republic of Kazakhstan No. 6 dated October 2, 2015 — On Judicial Practice of Conditional Early Release from Serving a Sentence, Replacement of the Unserved Portion of a Sentence with a More Lenient Type of Punishment, and Reduction of the Imposed Sentence Term.

🔹 7. International Standards

The application of replacement of the unserved portion of a sentence complies with international standards, such as:

· The UN Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), which provide for the possibility of early release or replacement of punishment to encourage the rehabilitation of convicted persons.

· The International Covenant on Civil and Political Rights, which guarantees the right to humane treatment of prisoners and the possibility of sentence review.

🔹 8. Practical Examples

· Example 1: A person convicted of an offense of medium gravity, having served one third of the sentence, with no malicious violations of the regime and having fully compensated the damage, applied for replacement of the remaining portion of the sentence with restriction of liberty. The court granted the petition, taking into account the positive characteristics of the convicted person.

· Example 2: A person convicted of a serious crime, having served half of the sentence, assisted in the detection of a crime committed by a criminal group. The court reduced the remaining portion of the sentence by one third, considering the active cooperation of the convicted person with the investigation.

🔹 9. Conclusion

Article 73 of the CC RK is an important instrument within the criminal justice system of the Republic of Kazakhstan. It is aimed at encouraging the rehabilitation of convicted persons and their successful reintegration into society. The application of this provision requires a thorough assessment of the convicted person’s behavior, commitment to rehabilitation, and compliance with the conditions established by law.

Attention!   

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